This commentary was published in Newsweek on January 2, 2018.
The new year brings with it a new age of legal marijuana: As of Monday, the growing, sale and use of recreational cannabis in California is now legal for individuals over the age of 21. But will it change much in the state?
Despite uncertainty at the federal level, California is making steady progress toward creating a system to regulate the legal use of marijuana. In many ways, the most interesting activity in marijuana policy is taking place at the local level, as counties and towns wrestle with how to define the role of the industry in their communities.
This year’s state budget includes a trailer bill designed to address a number of implementation issues raised by the passage of the Medical Cannabis Regulation and Safety Act in 2015 and Proposition 64 last fall. The biggest challenge was reconciling the two laws to create a single regulatory framework for both medical and recreational marijuana, a recommendation put forth in a recent PPIC report. The trailer bill also includes other provisions that aim to clarify and fill in details around implementation. For example, the bill:
Although Californians have supported the legalization of both medical and recreational marijuana, possession of the substance remains illegal under federal law. In past years, Congress has passed legislation that makes enforcement of federal marijuana law a low priority. However, Attorney General Jeff Sessions, who has opposed relaxing restrictions on marijuana, has reportedly sent a letter to Congress asking that it rescind that directive. Like so many federal-state issues at that moment, it is very difficult to predict future decisions concerning enforcement of federal marijuana law.
The relationship between the state and local jurisdictions is clearer. One section of the trailer bill reaffirmed that the new regulatory structure does not limit the authority of cities, towns, and counties. But the clarity of that relationship doesn’t mean that there isn’t controversy. Conflicts have emerged within communities as they try to balance different local interests.
For example, Proposition 64 allowed for the cultivation of up to six plants per individual. In January, the city of Fontana passed an ordinance requiring any resident who wanted to grow up to six plants purchase a $411 permit. Getting a permit required that the applicant have no prior drug convictions or overdue fines. The ACLU (American Civil Liberties Union) and the advocacy group Drug Policy Alliance have joined together to file a lawsuit claiming the ordinance is too restrictive.
Calaveras County also illustrates the challenges of implementing marijuana regulations at the local level. At the same time that Proposition 64 received support statewide, 67% of Calaveras voters approved a county tax on marijuana production. The tax vote appeared to signal the county’s support for the marijuana industry. This past spring, however, after four of the five seats on the county board turned over, that body began considering a ban on commercial cultivation. With more than 1,000 registered growers (who each paid $5,000 in fees to operate) in a county of 45,000 people, the proposed ban is controversial.
Findings from the PPIC Statewide Survey support the idea that cannabis becomes divisive when the issue moves closer to home. When asked about the federal role, 60% of California adults and 66% of likely voters in our May survey said that the federal government should not enforce federal marijuana law in states that have decided to allow marijuana use. And though a majority of California adults (56%) say marijuana should be legal, state residents are divided when it comes to retail sales of marijuana in their communities. While 48% favor retail sales of recreational marijuana in their city or community, a similar proportion (47%) are opposed. Regionally, opposition to retail sales is highest in Orange/San Diego Counties (53% oppose). As cities across the state determine the regulatory standards for marijuana sales, they may find divergent views within their communities.
Federal, state, and local governments all have a say in marijuana regulation. It is clear from the issues yet to be resolved that the statewide election was just the beginning of a complex process to build the regulated, legal market for cannabis that California voters supported.
The morning after Election Day, California appeared to be on a very different path than much of the nation. But in voting to legalize recreational marijuana, Californians were very much in step with the rest of the country. In addition to California’s Proposition 64—which passed relatively easily, with 56% of the vote—measures were passed in Nevada and Massachusetts that legalized recreational marijuana. Measures that legalized or expanded medical marijuana passed in Florida, Arkansas, North Dakota, and Montana. So far, Arizona is the only state to have rejected a recreational marijuana measure. Maine also passed a measure legalizing recreational use, though the vote was close and is subject to a recount.
While marijuana remains illegal under federal law and continues to be classified as a Schedule I drug (meaning it has a high risk for abuse and has no accepted medical value), 63% of Americans now reside in states that have medical or full legalized use, including 21% with legalized recreational use.
Now comes the difficult part. Proposition 64 sets in motion a number of steps and procedures designed to create a regulated market for recreational marijuana. Many of these can be modeled on last year’s legislation regulating California’s medical marijuana market. And the states that have legalized marijuana so far have created a competitive but regulated market structure. But regulatory experience—in California and other states—is in short supply. As one state regulator opined at a recent PPIC event, “Right now, science is lagging policy.”
Marijuana regulation cuts across many areas. Earlier this year, we outlined several key regulatory areas, including cultivation, production, and processing; sales, consumption, and possession; taxes and finance; and public health and safety. The challenge facing California and other states is to implement regulations that can achieve multiple, sometimes conflicting policy goals: limiting the impact of the illegal market, preventing youth drug use, reducing harm to public health and safety, preventing diversion of legal marijuana into illegal markets, and raising revenue. This requires a comprehensive regulatory approach that would document and control the cultivation, production, processing, and sale of legal marijuana.
Our report recommended that California err on the side of caution and adopt a relatively restrictive regulatory model for both the recreational and medical markets. We still maintain that a tight, single market will make marijuana laws easier to enforce and reduce diversion to under-age Californians and to other states. To be sure, a highly regulated legal market will be accompanied by a robust illegal market. But it will be easier to loosen a tight market than to tighten a loose one.
Given the apparent national interest in legalizing marijuana—and the lack of knowledge about this new industry—California is positioned to be a leader in answering difficult questions about how best to regulate it. To play a leadership role, California regulators should collect data on marijuana sales, prices, revenue, and use. Basic market information would play a significant role in closing this knowledge gap and inform better future policy for both our state, and the rest of the country.
Finally, we should note that there is some uncertainty about the future of marijuana regulation across the country. As noted above, federal law still classifies marijuana as an illegal substance. The relatively benign approach that the federal government has taken to enforcing federal law regarding marijuana has been based on three memos written by second-tier cabinet members and some language in an annual appropriation bill. Though President-elect Trump has not explicitly stated his policy on marijuana, it would be relatively simple for the new administration to alter the current federal approach.
Read the report Regulating Marijuana in California
